FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Monette & Monette (No 2) [2024] FedCFamC1F 481
File number(s): ADC 2811 of 2021 Judgment of: BERMAN J Date of judgment: 23 July 2024 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Consideration of family violence – Allegations of sexual abuse – Where the wife seeks a finding that the children were sexually abused by the husband – Where the Court finds that sexual abuse could have only occurred at the paternal grandparents’ home following supervised time – Consideration of the reliability of the children’s disclosures – Where the children have been subjected to repeated investigations, assessments, interviews and discussions – Where the wife used every opportunity to notify and raise allegations – Where the Court finds the husband did not sexually abuse the children – Where the wife’s beliefs are genuine nonetheless without foundation – Consideration of unacceptable risk of harm – Where the evidence does not support a finding of the husband being an unacceptable risk of harm – Consideration of meaningful relationship – Where the children have not spent time with the husband for two years – Where the children fulsomely engaged with the husband during supervised visits – Where the wife asserts that she will support a relationship if no finding of sexual abuse – Where the Court finds that the children would benefit from a meaningful relationship with the husband – Where the ICL promotes significant time with the children and the husband – Orders made for a graduated increase in time with the husband.
FAMILY LAW – PROPERTY – Modest asset pool – Where the parties’ proposals are 10 per cent apart – Consideration of contributions – Where the parties’ took on traditional roles within the marriage – Contributions considered equal – Consideration of future needs factors – Where the husband has a greater income earning capacity – Where the wife is the primary carer – Consideration of a child’s significant medical needs – Adjustment made in the wife’s favour – Consideration of addbacks – Where the legal fees incurred are disproportionate to the issues – Where the Court declines to addback legal fees – Orders made for the interim property settlement funds to be added back – Orders.
FAMILY LAW – SPOUSAL MAINTENANCE – Interim and lump sum – where the husband concedes that the wife is entitled to spousal maintenance – Consideration of quantum of spousal maintenance – Assessment of reasonable expenses – Orders made for a lump sum payment.
Legislation: Evidence Act 1995 (Cth) 140
Family Law Act 1975 (Cth) Division 12A, ss 4AB, 60B, 60CA, 60CC, 61DA, 69ZT, 69ZV, 69ZW, 72, 74, 75, 79.
Criminal Procedure Act 1921 (SA) s 103
Cases cited: Amador & Amador [2009] FamCAFC 196
Baglio & Baglio [2013] FamCA 105
Briginshaw v Briginshaw [1938] HCA 34
Drysdale & Drysdale [2011] FamCAFC 85
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Harridge & Harridge [2010] FamCA 445
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- AGLC
- Monette & Monette (No 2) [2024] FedCFamC1F 481
- Case
- [2024] FedCFamC1F 481
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the Court to determine were whether Mr Monette had sexually abused the children and whether he presented an unacceptable risk to their welfare. Furthermore, the Court had to consider the best interests of the children in relation to their living arrangements and the division of the parties' property, including superannuation entitlements. The Court was also required to decide on the appropriate quantum of spousal maintenance.
In its reasoning, the Court found that the allegations of sexual abuse were unsubstantiated. The evidence presented by the children had been unreliable and influenced by repeated investigations and discussions. The Court observed that the children had fulsomely engaged with Mr Monette during supervised visits, and there was no evidence to support the notion that he presented an unacceptable risk of harm. The Court concluded that the children would benefit from a meaningful relationship with their father and ordered a graduated increase in time with him. Regarding the property settlement, the Court found that the parties' contributions were equal, and it ordered a division of assets in favour of Ms Monette. The Court also ordered Mr Monette to pay a lump sum of spousal maintenance to Ms Monette. The Court further detailed the division of the proceeds from the sale of their former matrimonial home and the transfer of specific assets between the parties.
The final orders discharged all previous parenting orders and established shared parental responsibility for the children, with sole responsibility for major medical issues resting with Ms Monette. The children were to live with Ms Monette but spend increasing amounts of time with Mr Monette under supervision. The Court also detailed the division of the parties' property, including the sale of their former home, and ordered a lump sum payment for spousal maintenance. The Court further outlined specific arrangements for the children's holidays, special occasions, and communication between the parties regarding the children's welfare.
Orders
Orders of the court
ADC 2811 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS MONETTE
Applicant
AND:
MR MONETTE
Respondent
AND:
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
23 JULY 2024
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
2. The parties have shared parental responsibility for X born 2016 (“X”), Y born 2018 (“Y”) and Z born 2019 (“Z”) (collectively “the children”).
3. Ms Monette ("the applicant”) shall have sole parental responsibility for major issues relating to the medical health of the children.
4. The parties are restrained and an injunction is granted restraining each of them from taking the children for any counselling, therapy or clinical psychological assessment other than if the parties jointly give their consent.
5. The children live with the applicant.
6. The children spend time with Mr Monette (“the respondent”) as follows:
6.1 Commencing 27 and 28 July 2024 for a period of six (6) weeks:
6.1.1 From 10.00 am to 2.00 pm each alternate Saturday and Sunday PROVIDED THAT the respondent’s time with the children shall be the subject of supervision by one or both of the paternal grandparents.
6.2 Commencing on 7 and 8 September 2024 for a period of twelve (12) weeks:
6.2.1 from 10.00 am to 4.00 pm on each alternate Saturday and Sunday PROVIDED THAT the respondent’s time with the children shall be the subject of supervision by one or both of the paternal grandparents.
6.3 Commencing on 30 November 2024 each alternate weekend from the conclusion of school on Friday (or 3.30 pm if not a school day) to 5.00 pm Sunday.
6.4 Commencing on 7 February 2025 each alternate weekend from the conclusion of school Friday (or 3.30 pm if not a school day) to the commencement of school on the following Monday or 5.00 pm if not a school day.
6.5 Commencing on 4 April 2025:
6.5.1 Each alternate weekend from the conclusion of school Thursday (or 3.30 pm if not a school day) to the commencement of school on Monday or 5.00 pm if not a school day; and
6.5.2 Each Tuesday from the conclusion of school (or 3.30 pm if not a school day) to 6.00 pm.
7. The children spend time with the parties during the school holidays commencing at the end of second term 2025 as follows:
7.1 In the short school holidays, with the respondent from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday and with the applicant for the remainder of the holidays; and
7.2 In the December/January holiday period, on a week about basis with the respondent to have the first week and handover to take place each Friday at 5.00 pm but NOTING THAT the respondent shall collect the children from school on the last day of term.
8. Notwithstanding orders 6.3 – 6.5 inclusive the children shall spend time with each of the parties at the following specified times unless otherwise agreed between them in writing:
8.1 In 2025 and each alternate year thereafter from 9.00 am on Christmas Eve until 3.00 pm on Christmas Day with the respondent and from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day with the applicant; and
8.2 In 2026 and each alternate year thereafter from 9.00 am on Christmas Eve until 3.00 pm on Christmas Day with the applicant and from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day with the respondent.
8.3 From 9.00 am on Good Friday until 5.00 pm on Easter Monday (for Catholic Easter and Orthodox Easter) in even years with the applicant and in odd years with the respondent.
8.4 Commencing 2025, with the applicant from 5.00 pm on the preceding Saturday until 5.00 pm on Mother’s Day and with the respondent from 5.00 pm on the preceding Saturday until 5.00 pm on Father’s Day.
8.5 From 2025, unless otherwise agreed in writing, the children shall spend time with the parent with whom they are not living on each child’s birthday for a minimum of two (2) hours if the birthday falls on a school day and a minimum of four (4) hours if the birthday falls on a non-school day at such times to be agreed and failing agreement between the parties with such time to commence at the conclusion of school on a school day and at 10.00 am on a non-school day NOTING THAT if handover is to occur on a child’s birthday no additional time will be required.
9. Each of the parties will keep the other advised by the use of a Parenting App as to the children’s physical or mental health and welfare and of any change of school, education issue and any issue regarding the children’s religion.
10. Each party shall keep the other informed of any serious illness, accident or incident involving the child or children and each party is at liberty to visit the children during any period when the children may be hospitalised subject to the parties using their best endeavours to attend upon the child or children in the absence of the other party.
11. The respondent has leave to provide a copy of the final orders and an anonymised version of the judgment to any school that the children attend if he considers it necessary NOTING THAT the children currently attend B School.
12. Each party is entitled to be involved in the children’s school and be permitted to obtain copies of all documents relating to the children inclusive of reports, activities and photographs at their own cost direct from the children’s childcare, kindergarten and school.
13. Each party is entitled to attend, spend time and communicate with the children at school and other public venues for events that parents are normally invited to including but not limited to sports days, sporting events, school concerts, school plays, fundraisers, excursions, school camps and other like events PROVIDING THAT the parties will use their best endeavours to ensure that they do not attend at the same time.
14. Each party do advise the other of any change to their residential address via the Parenting App as agreed.
15. The order for the Independent Children’s Lawyer be discharged.
16. In full and final settlement of all claims that either party may have against the other for settlement of property in alteration of interest in property and NOTING THAT the net non-superannuation assets of the parties are to be divided as to 67.5 per cent in favour of the applicant and 32.5 per cent in favour of the respondent.
THE COURT ORDERS BY CONSENT THAT:
17. The former matrimonial home situate at C Street, Suburb D (“the Suburb D property”) be sold and to give effect to the sale of the Suburb D property:
(a) Within seven (7) days of this order, the parties do all such things and sign all such documents to jointly engage Ms E of F Real Estate to sell the Suburb D property on such basis and upon such terms as recommended by Ms E and agreed to by the parties in writing.
(b) The parties agree to the Suburb D property being sold by auction at a reserve price of not less than $1,800,000.00.
(c) Upon sale of the Suburb D property, the proceeds of sale shall be applied as follows:
(i) Firstly, in discharge of all monies due and owing in respect of the home loan in relation to the Suburb D property, to National Australia Bank, mortgage number #32;
(ii) in payment of all sales costs and commissions; and
(iii) in payment of each party’s conveyancing fees;
18. Pending the settlement of the sale of the Suburb D property, paragraphs 4, 5 and 6 of orders made 19 April 2023 (amended on 21 April 2023) do continue.
THE COURT FURTHER ORDERS THAT:
19. The net proceeds of sale of the Suburb D property are to be disbursed as follows:
19.1 To the Eastern Legal Pty Ltd Law Practice Trust Account for and on behalf of the applicant a sum calculated as to 67.5 per cent of the net proceeds of sale, less the sum of $44,900 comprising $64,900 for property retained less $20,000 by way of lump sum spousal maintenance;
19.2 To Alex Mandry Legal Group Trust Account for and on behalf of the respondent, the balance of the net proceeds of sale.
20. Pursuant to s 74(1) of the Family Law Act 1975 (Cth) (“the Act”) the respondent do pay to the applicant lump sum spousal maintenance in the sum of $20,000 (noting that the said sum will be disbursed to the applicant at settlement pursuant to order 19.1).
21. The applicant shall be entitled to any and all net income generated from the tenancy of the Suburb D property but to be taken into account and directly deducted from the lump sum spousal maintenance payable to the applicant.
22. The parties do all things and sign all such documents as may be necessary to close the joint NAB Bank Account (Account Number #04) with the applicant to retain the balance of the account as part of her property settlement.
23. The applicant do retain free from claim by the respondent the following:
23.1 Her bank accounts (including any settlement sum);
23.2 The furniture and effects in her possession;
23.3 Her furniture and personal possessions;
23.4 Motor vehicle 1;
23.5 Her superannuation entitlements (inclusive of the superannuation split referred to herein); and
23.6 Any other personal property and/or financial resource of the applicant not otherwise specified herein.
24. The respondent do retain free from any claim by the applicant the following:
24.1 His bank accounts (including any settlement sum);
24.2 Furniture and effects in his possession;
24.3 His jewellery and personal possessions;
24.4 His superannuation entitlement; and
24.5 Any other personal property and/or financial resources the respondent not otherwise specified herein.
25. The respondent do all things necessary to cause Motor vehicle 1 to be transferred to the applicant forthwith and shall indemnify the wife and discharge the outstanding liability to the husband’s father.
26. The following shall apply to the respondent’s interest in Super fund 1(“the fund”):
26.1 That pursuant to s 90XT(4) of the Family Law Act 1975 (as amended) the Court allocates such base amount to split 50 per cent of the total of the parties respective superannuation entitlements to the applicant out of the respondent’s interest in the fund;
26.2 That in accordance with s 90XT(1)(a) of the Act:
26.2.1 The applicant (or the applicant’s administrators, executives, beneficiaries, heirs or assigns) to the extent permitted by law is entitled to be paid using the base amount allocated in the immediately preceding order in the sum of FIFTY-THREE THOUSAND, SIX HUNDRED AND TWENTY FIVE DOLLARS ($53,625), the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001; and
26.2.2 The entitlement of the respondent in the fund (or the entitlement of such other person who becomes entitled to receive a payment out of the respondent’s superannuation interest) is correspondently reduced by force of this order.
26.3 That the trustee of the fund (“the trustee”) shall do all acts and things and sign all such documents as may be necessary to:
26.3.1 Calculate, in accordance with the requirements of the Act the entitlement awarded to the applicant in the immediately preceding clause of this order; and
26.3.2 Pay the entitlement whenever the trustee makes a splittable payment from the respondent’s interest in the fund.
26.4 That this order has effect from the operative time and the operative time is the beginning of the fourth business day after the day in which the order is served on the trustee of the fund by either party, so that the splittable payment can be administered affectively.
26.5 That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the respondent shall do all things and sign all such documents as may be necessary, including but not limited to exercising the applicant’s request in accordance with the SIS Regulations, for the role over or transfer of the non-member spouse interest to a complying superannuation fund of the applicant’s choosing in accordance with the SIS Regulations.
26.6 That having been accorded procedural fairness in relation to the making of the order for a superannuation split, these orders bind the trustee of the fund.
27. Each of the parties do indemnify the other in respect of their separate actions, claims, proceedings and demands howsoever arising in relation to any debt or liability incurred in their separate names.
28. The parties do all acts, deeds, and things and sign and execute all documents necessary to give full force and effect to this order provided that if either the applicant or the respondent shall refuse or neglect to execute a document necessary to give full force and effect to this order within fourteen (14) days after the same shall have been tendered to him or her for that purpose then and in such event a Judicial Registrar or Deputy Registrar of Division 1 of this Court shall upon proof by affidavit of such refusal or neglect be appointed to execute and in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things as shall be necessary to give full force and affect thereto and shall execute and do the same accordingly.
29. Each party to pay one half of the agreed costs of the Independent Children’s Lawyer.
30. Each party pay their own costs and disbursements.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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